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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: YES/NO (2) OF INTEREST TO THE JUDGES: YES/NO (3) REVISED 1/10/2020
CASE NO: A247/2019
In the matter between:
NQOTHULA SIBUSISO Appellant
and
THE STATE Respondent
J U D G M E N T
LEDWABA AJ
2
Introduction
[1] In terms of section 309 of the Criminal Procedure Act 51 of
1977(the CPA) as emended by section 10 of the Judicial
Matters Amendment Act 42 of 2013, the appellant is
appealing against the conviction and sentence by the
Regional Court Magistrate JF Steyn sitting at the Regional
Court, Oberholzer. The charge sheet states that on or about
the 9th December 2012 and at or near Khutsong, in the
Regional District of Gauteng, the appellant committed the
offences of kidnapping and rape.
[2] In respect of the kidnapping charge, it is alleged that the
appellant unlawfully and intentionally deprived R[....] M[….]
(R[....]/the complainant) of her freedom of movement by
means of forcefully and against her will, taking her to a veld
near Gugulethu, Khutsong.
[3] The rape charge is stated to be an act in contravention of
section 3 read with sections 1, 55, 56(1), 57, 58, 59, 60 and
61 of the Criminal Law Amendment Act (Sexual Offences
and Related Matters) Act 32 of 2007 read with sections 256,
3
257 and 261 of the CPA; the provisions of section 51, 5 and
schedule 2 of the Criminal Law Amendment Act 105 of 1997
(the Act) as amended as well as section 92(2) and 94 of the
CPA. The charge sheet states that the appellant did
unlawfully and intentionally commit an act of sexual
penetration with a female person, to wit, R[....] (19 years) by
having sexual intercourse without her consent.
[4] The appellant was sentenced to five years imprisonment in
respect of the kidnapping charge and life imprisonment in
respect of rape charge, hence the automatic right of appeal
against sentence. The two sentences were ordered to run
concurrently.
[5] The appellant was legally represented and before he was
requested to plead to the charges, the court explained to him
the provisions of the minimum sentence to the effect that in
the absence of substantial and compelling circumstances in
respect of the rape charge, he could be sentenced to life
imprisonment. Competent verdicts were also explained to
him. He pleaded not guilty to both charges.
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The Background – The state’s version:
[6] As witnesses, the state called Constable Dingiswayo
(Dingiswayo), Sergeant Napai (Napai, Thabo L[....] (L[....])
and the complainant.
[7] Dingiswayo is the arresting officer of nine years’ experience.
Having received a complaint and the suspect’s description as
a person with a lot of tattoos on his face, he found the
appellant at Margaret tavern and requested him to come with
him to the complainant’s place. At the complainant’s place,
she identified the appellant as the person who committed the
offences. He was arrested and when told about the reason
for his arrest, his response was that the complainant was his
girlfriend. He was taken and detained in the police cells.
[8] Napai, a thirteen years experienced police officer and the
investigation officer in this matter was at that time stationed
at Carletonville police station. While on standby, she
received a call about the alleged offences of kidnapping and
rape. She was later told that the complainant, her boyfriend
and another witness were at the police station. The
complainant told her that she was with her boyfriend on their
5
way home when she realised that she had forgotten her
umbrella at Tsungo tavern. On their way to Tsungo place
they were attacked by a group of men armed with a knife, a
panga and an empty bottle. The complainant tried to run
away but fell down. Four of the men took her, dragged her
behind the police station to the open veld and took turns in
raping her without using condoms. The appellant then
apparently emerged onto the scene after the gang rape and
was addressed by the others as “Boss”. He then took her to
his shack in Rivonia Extension 3 where he undressed and
raped her again. The complainant described the suspect who
raped her at the shack as having a lot of tattoos and was
able to see his face. She observed these while her attacker
was busy raping her. Before the appellant removed her to his
shack, the men argued among themselves as to whether to
kill her. She testified that the complainant had told her that
she had told the appellant she feared the rape might result in
her becoming pregnant and the appellant promised to bring
her cellphone back. She then arrested the appellant and took
the complaint for DNA sampling. As she was not present,
she could not comment on the version that the appellant met
the complainant at the tavern, later in the street and they
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agreed to go together to his places to have consensual sex.
She denied that the following day the appellant took the
complaint half way to her home because according to the
complainant’s statement, the appellant told her to leave
because his girlfriend by the name of Kilebogile was coming
to the shack. She denied the version that when they went to
bed that evening, Kilebogile slept on the bed while the
appellant and the complainant slept on the mattress on the
floor.
[9] L[....] is the complainant’s boyfriend. He testified that around
14h00-15h00 he met the complainant. She told him that she
was going out and they agreed that she would call him to
come and collect her once she was done with what she was
going to do. He testified that while at Lashilwe’s place, the
complainant called and requested him to come to collect her
from Tsungo’ place. Accompanied by his friend Doctor, they
went to collect the complainant with her friend D[....] M[....]
(M[....]). On their way from taking M[....] half way to her home,
they met about twelve men who inquired from him whether
the complaint was his girlfriend and when he answered in the
positive, one of them took out a knife and the other one an
7
empty bottle. As they ran away, the men apprehended the
complainant. He went to his home not far from there and
called his brother to accompany him to report the kidnaping
case at the police station. The police accompanied him to the
nearby squatter camp but they could not find the complainant.
He met the complainant the following day on her way to the
police station. He knew the appellant by sight only. He
denied that the appellant is the complainant’s girlfriend. He
disputed the allegation stated on the J88 form that at around
13h00 that day and before meeting him, the complainant had
a sexual intercourse with someone else. He replied that the
complainant and himself were staying in their respective
parental homes, with the complainant staying the second
house from his home. He stated that they did not have sex
before the complainant went to Tsungu Tavern.
[10] The complainant testified in camera that on that day her
friend M[....] visited her home and they decided to go to
Tsungo’s tavern where they drank Strongbow “wines”. She
communicated then with her boyfriend and they agreed to
meet at the robot next to the police station for him to
accompany M[....] to her home. Her boyfriend came with his
8
friend Doctor and after they had walked M[....] half way to her
home, she went back to Tsungu tavern with her boyfriend to
collect her umbrella which she had left behind. While they
were on their way to collect her umbrella they met a group of
young men who confronted them. One of them had a knife
and another had a bottle. She tried to run away but the next
moment she noticed she was lying on the ground with the
men undressing her clothes. One of them took off her shoes
and the other one placed a knife on her neck ordering her to
keep quiet. They chased her boyfriend away and took turns
raping her. They took her by force and walked her across a
stream. As they were walking and quarrelling amongst
themselves, the appellant appeared and one of them gave
him the knife. At a certain ditch they said the appellant
should remain with her while the others left. One of the group
wanted the appellant to rape and kill her, while two others
were against the idea. When appellant and the complainant
remained behind at the ditch, the appellant wanted to rape
her but the other men then came back and stopped him.
One group of the men then left again and the other group
remained with the appellant. She does not know what
happened to those who remained as they disappeared at
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some stage. The appellant then took her to his shack where
he unlocked it and pushed her inside. He locked the shack
from outside with a chain and left. The group came back and
knocked at the shack but she kept quiet until they left. The
appellant came back to the shack and used another entrance
to enter the shack. He ordered her to undress and when she
resisted, he produced the same knife he had produced
earlier in the veld and threatened her with it. He undressed
her skirt and raped her twice. It was in the early hours of the
morning around 2am. He apologised on behalf of the group
and acted as if she was his girlfriend. When she asked the
appellant about her cellphone which was taken by the men,
he replied that he knew nothing about it and requested her
cellphone number. She gave him her friend’s number. The
appellant then loaned her some shoes and a “top” to wear.
She asked for taxi money and he said he did not have it. He
suggested that they go to his friends for taxi money but she
refused, fearing that they could rape her again. He took her
half way and said his girlfriend was coming to his place. He
did not want her to look back and see the shack properly.
She could see that she was in the vicinity of her friend
M[....]’s place but was so confused that she lost her way. She
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was helped by another man to find M[....]’s place. At M[....]’s
place she wanted to wash herself but M[....] advised her
against it as that could tamper with evidence. They went to
report the matter to the police. After opening the case she
was taken to Sybrand van Niekerk hospital for tests and then
taken home. It was the first time that she had seen the
appellant. She had not seen him at Tsungu tavern.
[11] Her version was tested during cross-examination. She
replied that there was nobody in the shack when they had
gotten there and does not know the appellant’s girlfriend.
She could not remember if they had sexual intercourse with
her boyfriend while at his home before she went to Tsungu’s
place. At that time, she only had the one.
[12] She replied to a question that when she was raped by the
four men in the first rape incident in the veld, the appellant
was not there but came and joined the group and her
observation was that he was the leader of the group as they
were addressing him as the “Boss” and that is why they left
her with him to rape and kill her. She further replied that at
one point as they were walking, they saw a police van at a
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distant on the tar road but she was then “grabbed away”.
She also replied that her shoes were later collected by her
boyfriend where she left them when she had fallen down and
she had only borrowed the appellant’s clothing items
because it was cold the following morning. She left the
appellant’s items at M[....]’s place and learned that M[....] had
thrown the shoes away. The “top” could not be located as
they had changed the residential place.
[13] The appellant’s version was put to her upon which she
denied that her relationship with the appellant had started in
2012 when they met at a tavern and exchanged contact
details. She denied that on the day of the incident, the
appellant met her at Tsungu tavern while she was in the
company of her two friends and when he gave her R100.00
at her request to buy liquor. She denied that he later met her
after disappearing where she was assaulted and he rescued
her before they went to his place where they were let in by
his girlfriend Kelebogile. She denied they had consensual
intercourse once on the floor while the appellant’s girlfriend
was sleeping on the bed.
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[14] She replied that during that week she had sexual intercourse
with her boyfriend. She denied the allegation stated in the
J88 form that she had sexual intercourse around 13h00 on
the date of the incident.
[15] The witness M[....] had passed away by the time of the trial.
In a trial within the trial and in terms of section 3(1)(c) of the
Law of Evidence Act 45 of 1988, the state successfully
applied for the admittance of the deceased witness’ hearsay
evidence made shortly after the incident in the form of an
affidavit. The contents of the affidavit corroborated the
complainant’s evidence and that of her boyfriend L[....]
The appellant’s version:
[16] The appellant testified that the complaint is his girlfriend.
They allegedly met previously at Granny’s tavern in Skoppas
section and on the day of the incident, he met her at Tsungu
tavern in the company of her friend D[....]. She requested him
to buy them liquor and he gave her R100.00. She agreed to
go with him to his place. After drinking some liquor and when
he later looked for her, he could not find her and decided to
go home. He found her on the street with one young man
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busy slapping her with open hands. Her assailant ran away
and she agreed to go with him to his shack. At the shack
they unexpectedly found his girlfriend Kelebogile. The
complainant argued with Kelebogile and he intervened. He
spent the night with the complainant sleeping on the matrass
based sponge on the floor while Kelebogile slept on the bed.
He had one round of sex with the complaint. Fearing that
there could be a fight if Kelebogile woke up before the
complainant had left, he woke the complainant up around 5
am. The complaint borrowed his jersey and also gave him
her cellphone number. He denied that he gave her shoes. He
walked with her for a distance between extension 3 and
Christ Hani section. He denied having apologized on behalf
of the complainant’s attackers, having undertaken to return
her cellphone and being told by the complainant that she felt
like being pregnant as a result of being gang raped. The
appellant denied having arrived where the complainant was
being raped and being referred as “boss”. He denied having
pointed a knife at the complainant and raped her. His view
was that the complainant had reported him because she
unexpectedly found his girlfriend at his place.
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The trial court’s findings:
[17] Among others, the trial court found:
(a) that there was one contradiction with J88 medical
record which recorded that the complainant had
previous intercourse during the day around 13h00.
Both the complainant and her boyfriend L[....] disputed
the contents of the report in this regard;
(b) that instead of simply saying the appellant met her on
the street and took her to his home, there was no
reason for the complainant to create a complicated
version of her being kidnapped and gang raped before
the appellant joining the group in the manner he did
and proceeded to kidnap her to the shack and rape her;
(c) it strange that the appellant would accidentally meet
the complainant at the tavern, buy her beers and the
complainant would have left without him noticing that;
(d) it improbable that having been recently gang raped by
four men, the complainant would have consented to
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have sex with the appellant and again in the presence
of the appellant’s girlfriend sleeping on the bed in the
same shack;
(e) it also improbable that the appellant having allegedly
succeeded in stopping the argument between the
complainant and Kelebogile and the alleged two
girlfriends having spent the night in the same shack, he
would still fear that Kelebogile would still fight the
complainant the next morning that he had to remove
the complainant from the shack;
(f) it strange that the appellant did not know the
complainant’s address despite his claim that they are
in a love relationship;
(g) it strange that the appellant was not interested to
establish why his alleged girlfriend was slapped with
open hands by a stranger; and
(h) the appellant did not satisfactorily answer all the
questions put to him.
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Evaluation:
[18] The record of the court proceedings indicates that some of
the record is missing and that some were completed with a
black pen. Despite these missing portions, the proceedings
can be followed from the record and none of the parties have
indicated that this appeal cannot be finalised without the
missing portions. The missing portions are not of such a
nature or extent that this will prevent the fair dealing with this
appeal.
[19] The state bears the onus of proving its case beyond
reasonable doubt. If the accused’s version is found to be
reasonably possibly true, she or he is entitled to the benefit
of the doubt and acquittal.1
[20] The obligation of the state to prove its case beyond
reasonable does not mean it is obliged to close every
avenue of escape which may be said to be open to an
accused. It is sufficient for the state to produce evidence by
means of which such high degree of probability is raised that
the ordinary reasonable man, after mature consideration,
1 S v Mbuli 2003 (1) SACR 97 (SCA) at 110 D-F and S v V 2000 (1) SACR 453 (SCA) paragraph 3
17
concludes that there exists no doubt that an accused has
committed the crime charged.2
[21] Unless an appeal court finds that a trial court has misdirected
itself, it will be hesitant to interfere with its factual findings
and the evaluation of the evidence. 3 This means that the
powers of an appeal court to interfere with the findings of fact
of the trial court are limited to where a trial court has
misdirected itself.4
[22] The identity of the appellant is not in dispute. He was
correctly identified by the complainant and has admitted to
having sexual intercourse with the complainant on the date
of the incident. The evidence that the complaint and the
appellant went to the appellant’s place, spent the night
together and had sexual intercourse is common cause. At
issue is whether the appellant forced the complainant to go
with him to his place and then had sexual intercourse with
her against her will. Simply put the question is whether there
was rape or consensual intercourse.
2 S v Phallo & Others 1999 (2) SACR 558 (SCA) 3 R v Dhlumayo & Another 1948 (2) SA 677(A) and S v Mlumbi 1991 (1) SACR 235 (SCA) at 247g 4 S v Francis 1991 (1) SACR 198 (A) at 198j-199a
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[23] The appellant’s submission is that he was not part of the
group when the complainant was taken into the veld and that
he appeared on the scene after the gang rape. The state’s
kidnapping charge relates to the movement of the
complainant to the appellant’s shack and the question is
whether this was against her will.
[24] With regard to the rape charge, the appellant submits that
the state failed to prove that he was present and participated
in the rape by a group of men. It is common cause that the
appellant came into the scene after the men had gang raped
the complainant. It is also the state’s case that the appellant
was prevented from raping the complainant at a ditch before
they arrived at the shack. My understanding is that the rape
charge is based on what happened inside the appellant’s
shack. It is common cause that the appellant had sexual
intercourse with the complainant in the shack. At issue is
whether it was consensual and the number of times that
occurred. While the appellant says it happened once with the
complainant’s consent, the complainant says it happened
twice without her consent and at knife point. The appellant
submits that the complainant’s statement that he “raped me
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twice” was not pursued for clarity as to whether the allegation
is that the complainant was penetrated twice and not
necessarily raped twice. He submits that the state failed to
prove beyond reasonable doubt that he committed two acts
of rape. He submits that repeated acts of sexual penetration
do not necessarily constitute a new offence of rape.
[25] The state case is that with one encounter with the
complainant, the appellant raped the complainant more than
once as envisaged in section 51(1) read with part 1 of
schedule 2 of the Act.
[26] The Legislature envisaged an accused being charged with
one count of rape if, in the course of his encounter with his
victim, he penetrates her more than once. The repeated
penetration of a victim is what aggravates the perpetration of
a rape and renders an accused liable for life imprisonment. It
is the multiple acts of penetration that attracts life sentence.5
The correct way of charging an accused who raped the
victim more than once in the course of a single encounter is
to charge such an accused with one count of rape.6 Without
5 S v Maxabaniso 2015 (2) SACR 553 (ECP) ( Maxibaniso)- paragraph 25- page 558 6 Maxabaniso (above)
20
any of these legal arguments having been explained to the
complainant, the evidence that she volunteered on her own,
was that the appellant raped her twice. There is no basis to
interpret the complainant’s own voluntary statement in any
other way than how she puts it. There is no basis to
interrogate what she meant by being raped twice to
determine whether there was muiltiple penetration,
ejaculation or interruptions. There is thus no basis to
complain that at the trial stage, there was a need to clarify
the complainant’s statement and there is certainly no basis to
do such clarification at this appeal stage. The rape offence
was committed in the circumstances where the complainant
was raped more than once, with life imprisonment being an
appropriate sentence. The appellant was thus correctly
charged and convicted of raping the complainant more than
once.
[27] From the time the charges were put to the appellant, he
knew that he was facing a sexual offence charge read with
section 51(1) of the Act. The parties conducted the hearing
on the understanding that the appellant was facing a rape
charge committed more than once. The appellant knew that
21
absent substantial and compelling circumstances, he was
facing life imprisonment if found guilty. 7 He was not
prejudiced in the conduct of his defence and there was no
trial related prejudice.
[28] There is no basis to interfere with the court’s finding that the
complainant was taken by the appellant to his shack against
her will. This constitutes kidnapping by the appellant. The
appellant’s allegation that she laid complaints because she
unexpectedly found his girlfriend at his place does not make
sense.
[29] The state rightly points out the improbability of the two
girlfriends accepting to be made to spend the night with the
appellant next to each other after the protestation by
Kelebogile for the appellant having brought another girlfriend
to the shack. The possibility of consensual sexual
intercourse in that set up is too hard to believe. It is also hard
to believe that having argued with the complainant,
Kelebogile would be so fast asleep in the midst of sexual
intercourse between the appellant and the complainant that
7 S v Mahomotsa 2002 (2) SACR 435 (SCA) (2002) 3 All SA 534)
22
she did not even thereafter hear them leaving the shack at 5
am.
[30] The state correctly submits that the appellant could not
explain why did he not ask the complainant the identity of the
person who was slapping her with open hands and the
reason for the assault.
[31] The appellant could also not explain how his girlfriend
Kelebogile came to the terms and agreed to sleep on the bed
next to him sleeping with the complainant after the two ladies
argued over their alleged relationship with him. He also could
not explain why did he became worried that if Kelebogile
woke up before he left with the complainant in the early
hours of the morning she would have fought with the
complainant.
[32] The state further correctly submits that the defence of the
alleged love relationship between the appellant and the
complainant and alleged consensual sexual intercourse is
such a solid defence that the appellant would have proffered
it immediately on his arrest and would not have waited to
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only disclose it in court at the trial.
[33] The state correctly submits that the appellant’s explanation is
not in line with the totality of the adduced evidence and was
rightly rejected.
[34] On behalf of the appellant, it is submitted that the appellant
was convicted on the basis of the single witness apparently
without applying the required cautionary rules. A single
witness is basically where, even if the state calls two or more
witness, a conviction rests on the testimony of single
witness.
[35] The principle in section 208 of the CPA is that the trial court
may convict on the evidence of single witness provided that
such evidence is satisfactory in every material respect.8 In
assessing the evidence of a single witness, a trial court must
look for any feature which corroborates such evidence in
increasing its confidence in convicting the accused.9
[36] It is correct that the complainant is a single witness in
respect of both charges. Her boyfriend L[....] witnessed the
8 Isaacs v S 2006 (2) All SA 163(c); S v Mokoena 1925 OPD 79 at 86 9 S v Banana 2002 (2) SACR 1 (ZSCA) 1
24
first attack when the appellant was still not on the first crime
scene. The appellant came onto the scene after the
complainant was gang raped and he was given a knife to
rape and kill her. The trial court was conscious of the fact
that the appellant’s conviction depended on the evidence of
the complainant on this aspect and that it must be
approached with caution. It found that there were several
points of corroboration in respect of what had happened
before the kidnapping and rape incidents. There is
corroboration that the complainant and her late friend M[....]
went to Tsungu tavern, drank some beers and were later
joined by L[....] and his friend to take M[....] half way to her
home. The complainant L[....] corroborated each other about
the attack by a group of men and the complainant’s
kidnapping by these men after they took the deceased half-
way to her home and while they were on their way back to
Tsungu place to collect the complainant’s umbrella.
[37] Had the appellant’s version been the true facts, then the
complainant would have no reason to implicate him, being on
his version her boyfriend, after he had rescued her from
being gang raped. This version is too fanciful to be
25
reasonably possibly true.
[38] There is no basis to interfere with and overturn the trial
court’s findings of fact. The appeal on this aspect should fail
and the appellant’s conviction stands to be confirmed.
Sentence:
[39] The appellant has a previous assault conviction where he
was sentenced to eight months imprisonment and declared
unfit to possess firearm.
[40] By agreement between the parties, the victim impact
statement dated the 17th November 2017 was admitted into
evidence. The statement is to the effect that the complainant
still feels the effect of the rape. She is generally depressed,
feels lonely and isolated.
[41] The appellant’s personal circumstances are that he was
thirty years old at the time, unemployed, unmarried but
staying with his girlfriend and their two children. Had passed
standard seven.
[42] A knife was used to threaten the complainant. As she
26
submitted to the threat, she did not sustain serious injuries.
[43] The court found no substantial and compelling
circumstances.
[44] As the appellant had raped the complainant more than once,
absent substantial and compelling circumstances, life
imprisonment is the prescribed minimum sentence.10 Given
the circumstances of this case the trial court correctly found
no substantial and compelling circumstances justifying a
departure from the prescribed minimum sentence of life
imprisonment.
[45] Order:
1. The appeal is dismissed.
2. The sentences of five years and life imprisonment
imposed by the court of first instance in respect of
kidnapping and rape charges respectfully are confirmed.
The sentences are to run concurrently.
10 Maxabaniso - paragraphs 29 and 33- page 559/60
27
______________________ LGP LEDWABA
Acting Judge of the High Court Gauteng Division, Pretoria
I agree and it is so ordered.
_______________________ N DAVIS
Judge of the High Court Gauteng Division, Pretoria
Date of hearing: 20th August 2020.
Judgement delivered on:
APPEARANCES
For the Appellant: Miss MMP Masete
Instructed by: Pretoria Justice Centre, Pretoria
For the Respondent: Adv. SD Ngobeni
Instructed by: The Director of Public Prosecution,
Pretoria